January 21, 2004 - Posted at 2:07 p.m. CDT
LITTLE ROCK, AR - The Arkansas Court of Appeals today ordered a new trial for a man convicted of first-degree murder in Crittenden County. The appeals court says the jury in the case should have been instructed that it could come back with a manslaughter verdict.
Terry Whittier was sentenced to 40 years in prison in the August 22, 2002, slaying of Austin Kirkwood, whose body was found on the front porch of a West Memphis home.
Police said Whittier confessed to the killing after investigators played a tape that was recorded by a witness who spoke with Whittier while wearing a recording device.
A defense lawyer asked at the trial for a manslaughter instruction, saying the victim had fired twice before Whittier fired his own weapon.
Circuit Judge Gerald E. Preston denied the request. The appeals court said evidence in the case warrented a manslaughter inclusion in the jury instructions.